The Cigar Association of America (CAA), Cigar Rights of America (CRA) and International Premium Cigar and Pipe Retailers Association (IPCPR) have a filed a lawsuit in the federal district court in Washington, D.C. seeking an injunction to “vacate, set aside and enjoin the enforcement of the final rule” by the U.S. Food & Drug Administration (FDA).
(For more on FDA’s regulation of premium cigars, please visit halfwheel.com/fda.)
Today’s filing comes shortly before two very important dates for the cigar industry: the 2016 IPCPR Convention & Trade Show, the industry’s largest, begins July 25 and FDA’s new rules are set to be enacted on Aug. 8, barring an injunction.
“Just over one month ago, our three associations pledged to work together to develop the appropriate response to the FDA’s new deeming rule,” said Mark Pursell, ceo of IPCPR, in a statement. “After a thorough and detailed legal review, we are challenging this unlawful regulatory action in federal court to protect the statutory and constitutional rights of our industry and its members. The fact that all three of our organizations are acting in once voice speaks to the urgency and seriousness of this action.”
Nine counts are listed in the lawsuit, challenging a variety of parts of the rule, including:
- The application of the Feb. 15, 2007 grandfather date
- The additional user fees only being applied to cigars and pipes, not to electronic cigarettes
- The decision to make warning labels 30 percent of the packaging
- The classification of retailers who blend their own pipe tobacco as “manufacturers”
- FDA’s decision to not include financial impact analysis for small business
- FDA’s regulation of pipes as an accessory.
It should be noted that FDA issued its thoughts on some of these issues within the various documents it published in early May after it announced the deeming regulations.
For example, it has stated that it does not believe it has the authority to change the Feb. 15, 2007 grandfather date, claiming only Congress can modify the date. Secondly, it says the application of user fees to electronic-cigarettes and other deemed products is also something that would require Congressional action.
Some manufacturers and retailers have criticized all three trade groups for their response to FDA’s regulations, particularly the timeliness of the response. In late May, the three groups issued a statement hinting at joint rare action and indicating it might take time before action was taken.
This is the third known lawsuit filed in response to FDA’s regulation from a cigar-related entity. Global Premium Cigars—the company behind the 1502 brand—filed lawsuit over a variety of complaints over larger parts of the new rules.
In addition, Altria—the world’s largest tobacco company—filed a lawsuit specifically regarding FDA’s banning the use of the word mild in product names, something that would affect its Black & Mild little cigars.
Various e-cigarette and vapor companies and trade organizations have also filed lawsuits of their own.
FDA has stated that it will seek to enforce all parts of the rule it can despite any legal challenges. In the event a court where to grant injunctive relief for a specific part of the rule, FDA would enforce all other parts of the rule.
For more on FDA’s regulation of premium cigars, please visit halfwheel.com/fda.